Military Earplug Manufacturer Unable To Escape Liability in Hearing Loss Lawsuits Under Government Contractor Defense

The U.S. District judge presiding over thousands of military earplug hearing loss lawsuits has ruled that 3M Company can not avoid liability for failing to warn about design defects, rejecting the manufacturer’s government contractor defense.

More than 150,000 claims have been presented against 3M and its Aearo Technologies subsidiary by military veterans, indicating that they have been left with permanent hearing loss or tinnitus caused by defective Combat Arms earplugs that were standard issue to all service members between 2003 and 2015. Plaintiffs allege that a defective design used in the reversible earplugs left them without adequate hearing protection, and the manufacturer withheld information about the known problems.

Given common questions of fact and law raised in lawsuits, a federal multidistrict litigation (MDL) was established last year, which centralized the claims before U.S. District Judge Casey Rodgers in the Northern District of Florida for coordinated discovery and pretrial proceedings.

In an order (PDF) issued on July 24, Judge Rodgers cleared the litigation to move forward, rejecting a motion for summary judgment filed by the 3M and Aearo, indicating that the manufacturers can not invoke the government contractor defense, which offers protection from state-law product liability claims arising out of a manufacturer’s compliance with a federal government contract.

Both 3M Company and the plaintiffs filed opposing motions for a summary judgment, seeking a ruling from the court on whether the defense allows the manufacturer to claim immunity from design defect and failure-to-warn claims. 3M argued such claims were pre-empted by federal law, since the Combat Arms earplugs were designed to military specifications. However, plaintiffs argued that the manufacturer could not meet the bar for defense contractor immunity, and Judge Rodgers agreed, clearing the way for the claims to proceed toward trial..

“After thorough consideration and for the following reasons, the Court finds the record evidence insufficient, as a matter of law, to establish the elements of the government contractor defense as to any of Plaintiffs’ claims,” Judge Rodgers ruled. “Accordingly, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion is denied.”

In her ruling, Judge Rodgers noted that there was no evidence the military actively participated in discretionary design decisions for the earplugs, negating the argument they were designed to any specific military standards.

As part of the management of the growing litigation, Judge Rodgers has established an early bellwether trial program, where a small group of representative cases were selected for additional discovery and preparation for early trial dates set to begin in April 2021, which are designed to help the parties gauge how juries may respond to certain evidence and testimony about the link between 3M earplugs and military hearing loss, which will be presented throughout each of the claims.

While the outcome of these early test trials will not be binding on other claims, they will be closely watched by the parties and are expected to heavily influence any negotiations to reach 3M earplug hearing loss settlements for veterans, which may be necessary to avoid the need for thousands of individual trials to be scheduled in courts nationwide in the coming years.